www.elsblog.org - Bringing Data and Methods to Our Legal Madness

29 June 2007

According to this story, Howrey, a 630-lawyer firm headquartered in DC, has ditched the nearly universal associate lockstep pay model in favor of a flexible approach that is purportedly linked to merit. Several blogs have debated whether this "bold move" is smart business or seeds of an eventual recruiting disaster. See WSJ Law Blog, Leiter, Moneylaw, Legal Ethics Blog, and Adam Smith. IMHO, they are all most are missing the bigger picture of what is really going on.

Howrey claims that "top performers" will be paid more, but (I think) that is just code for associates working in high-margin practice areas. These folks have a coveted skill set and are constantly being recruited on behalf of rival firms. In other words, the market is setting different price points for, say, 5th year labor & employment associates versus their 5th year private equity or specialty-litig peers. When partners with high-margin practices are losing associates, or associates in low-margin areas are getting raises they would never get in the lateral market, the "Partners with Power" are likely to lobby for--and get--an associate pay scale based on "merit".

Another datapoint corroborates this theory. Earlier this year, Dechert, a 700+ lawyer Philadelphia-based firm, moved to a bifurcated associate lockstep system: if you are in the favored Financial Services Group (FSG), you made up to $30K more than your non-FSG peers. Remarkably, Above the Law posted an internal Dechert email that detailed the FSG premium for each associate year. Certainly, Howrey's subjective "merit" system provides partners with better cover for meeting the market than Dechert's clumsy "caste system".

It is noteworthy that Howrey specializes in IP, antitrust, and global litigation--so associate salary wars with the big Wall Street firms are very hard to swallow. But the idea that Howrey is going to pay "low performers" less money is absurd. If you are a true low performer, your work dries up and you leave. But if you are superstar in a commodity practice area, your job is plenty safe; but expect to make less than your non-commodity peers. The laws of supply and demand are finally being brought to bear on Biglaw firms--that is what changing the age-old associate lockstep system, not some newfangled management theory.

Fresh from my mailbox, the July issue of the ABA
Journal has an article on the ideological drift of Supreme Court justices.
Author Richard Brust spoke with Lee Epstein of Northwestern University.
Along with co-authors Andrew Martin, Kevin Quinn, and Jeff Segal, she has an
article on this topic scheduled for an upcoming issue of the Northwestern
Law Review.

“[S]ays Epstein, ideological drift is the rule rather than the exception. Of
the justices appointed since 1937 -- the rise of the New Deal court -- almost
all have grown either more liberal or more conservative during their tenures.
Some have shifted several times. ‘Very few have not drifted,’ says Epstein. Of
the 26 justices over the last 70 years who served for at least 10 terms, only
four can be seen to have stuck to their original ideologies.”

Which four justices remained anchored to their original ideological dispositions? The
answers are (after the break):

WASHINGTON -- During the 12 months that ended June 30, 2006,
the nation’s prison and jail populations increased by 62,037 inmates (up 2.8
percent), to total 2,245,189 inmates, the Justice Department’s Bureau of
Justice Statistics (BJS) reported today. State and federal inmates accounted for 70 percent of the increase. At midyear 2006, two-thirds of the nation’s
incarcerated population was in custody in a state or federal prison
(1,479,179), and the other one-third was held in local jails (766,010).

28 June 2007

The deadline to submit abstracts for The Student “I” conference is fast approaching. Some details:

Graduate and undergraduate students from all disciplines are
invited to submit an abstract for The Student “I”, a student conference on
October 25, 2007 at the Faculty of Law, University of Ottawa, Canada.

Preceding the Revealed “I” conference hosted by researchers
from On the Identity Trail, this day long student conference brings together
students from around the world, selected through a peer-review process, to
present research relating to identity, privacy, anonymity, technology,
surveillance, and other related topics engaged by the On the Identity Trail
project.

Abstracts should not exceed 1,000 words (including notes and
citations). Successful abstracts will seek to make an original contribution.
Inter-disciplinary submissions are encouraged. Abstracts should be accompanied
with a short bio, which should include the student’s program and institution of
study, and an email address for correspondence. The deadline for abstracts is July 1, 2007.

On Fox News Sunday, Senator Diane Feinstein said she is considering
whether the Fairness Doctrine should be revived because “there ought to be an
opportunity to present the other side. And unfortunately, talk radio is overwhelmingly
one way.” According to The Hill, the Fairness Doctrine is generating increased
interest in Congress. So far, Exhibit A in this discussion is the new report
from the Center for American Progress and Free Press, which attempts to
document the imbalance in talk radio and comes out strongly in favor of
government regulation to undo “the move toward lowest common denominator
syndicated programming.” (p. 8) The report actually argues the Fairness Doctrine alone would be insufficient to remedy the imbalance and calls for more changes.

In part, the report bases its evidence on a non-randomly selected
sample of the roughly 1700 radio stations classified as news/talk. The analysis includes the 257 news/talk radio stations owned by the Big Five station
owners, Clear Channel, CBS, Citadel, Cumulus, and Salem. During the month of May 2007, 91
percent of the weekday political talk radio programming on these stations was
conservative and 9 percent was progressive (or liberal). The report adds that 236 of these
257 stations (92 percent) “do not broadcast a single minute of progressive talk radio programming.” (p. 3) However, many of these stations probably don’t broadcast any political talk at all. About one-third of the 65 news/talk stations listed in Appendix C of the report lack any identified conservative or progressive talk.

The explanation for how the imbalance indicates a market failure is based mainly on a PEW study from last year. It found the national
talk radio audience to be 43 percent conservative, 30 percent moderate, and 23
percent liberal. (PEW p. 38) These PEW numbers supposedly show there is unmet demand for
progressive programming; however, the report does not disaggregate these
national numbers and identify how many regions of the country actually have enough demand to sustain progressive programming but nevertheless have no supply.

With the programming so
ideologically lopsided in the aggregate, perhaps it should be obvious that
there is substantial unmet demand somewhere -- for example, the report says eight of the ten radio markets in Ohio have no progressive programming at all (p. 7) -- but the report is not convincing in explaining how the
market is unresponsive to demand, either nationally or at the local level. The report speaks of syndicated conservative programs as
having “artificial economies of scale” (p. 8), though the artificiality of
the market is seemingly attributed to a lack of vigorous government regulation.

Setting aside why the market for talk radio is the way it is, I’ll focus on a sampling issue in this post. I'll save a coding quibble and some thoughts on an appendix of the report for a later post. (Appendix D provides some evidence that minority owners and owners of only a single radio station are more likely to broadcast progressive programs.)

How do the United States Courts of
Appeals decide environmental cases? More specifically, how do courts
evaluate decisions of statutory interpretation made by government
agencies that deal in environmental law? While research on judicial
decisionmaking in environmental law has primarily focused on the D.C.
Circuit, the Environmental Protection Agency, and the influence of
ideology, only recently have legal scholars begun to consider the role
of legal factors in judicial decisionmaking in environmental law. Yet,
too little is known about environmental jurisprudence outside the
District of Columbia, the “other” environmental agencies, and the
influence of legal interpretive approaches and legal doctrine—as
opposed to ideology—in environmental law cases. With special attention
paid to how courts implement the Chevron doctrine, this Article
empirically and doctrinally analyzes environmental law cases decided in
the U.S. Courts of Appeals over a three-year period (2003-2005) to
investigate what factors, including ideological, legal and
institutional variables, impact judicial review of administrative
agency interpretations of environmental statutes.

Relying
on empirical analysis and descriptive data, this Article finds that
environmental cases of statutory interpretation, usually litigated in
the D.C., Second and Ninth Circuits, are dominated by EPA involvement
and interpretation of the Clean Air and Clean Water Acts. This
Article's findings confirm earlier research that judges vote in their
perceived ideological direction and show the Chevron doctrine, when
employed in environmental cases, works as expected—courts find most
statutory provisions ambiguous and then affirm agency action. There is
limited evidence that judges strategically use Chevron step one to
achieve desired policy preferences—at the ideological extremes,
conservatives deferred to Bush Administration agencies under Chevron
step two, while liberals were more likely to reverse the agency by
finding the statute unambiguous under step one. Legal preferences,
however, do play some role in judicial decisionmaking, and not
necessarily to achieve an individual judge's policy preferences.
Invoking legislative history mildly corresponds to a liberal vote, yet
ideology does not predict its invocation—suggesting a judicial
philosophy toward legislative history actually impacts voting outcomes
and lends support for the legal model of judicial decisionmaking.

This
Article also makes a number of qualitative findings. Doctrinally, there
remains much confusion and conflation in the circuits over how to apply
the Chevron doctrine, manifested through poor opinion organization,
befuddlement over the application of Chevron step zero, and multiple
understandings of the difference between arbitrary and capricious
review and the two Chevron steps. The circuits have shown, however, a
strong willingness to defer, under any doctrine or framework, to agency
action when environmental scientific expertise is required. Ultimately,
this Article supports a more nuanced notion of judging in environmental
cases that depends upon policy preferences, interpretive philosophies,
standards of review, and scientific complexity.

We are laboring away here in Bloomington on our large-scale longitudinal database of legal scholarship [hereafter the AMD2H database, for Arewa, Morriss, Dau-Schmidt, Hook, & Henderson]. In a nutshell, we are carefully linking 80 years worth of bibliographic data from the Index of Legal Periodical (ILP) with 85 years of biographical information from the AALS directory and a newly created categorization system that reflects evidence of institutional hierarchy in the decades that preceded U.S. News.

The large payoffs from this data-assembling enterprise are still months and years aways. But the process occasionally provide a window on some interesting freestanding factoids. Here are some:

Before "disambiguation" (e.g, determining whether "Joseph Smith" is "Joseph B. Smith"), there are 314,331 unique authors in the ILP database. Obviously, this number will go down as we clean the data.

There are approximately 750,000 articles with one or more named authors. The average output per author is 2.45 articles. After disambiguation, this number will go up, but not radically. (Note, this universe includes students, practicing lawyers, and law professors, so inferences of total academic productivity cannot yet be drawn.)

Similar to Paul Caron's observation on the Long Tail of Legal Scholarship, the Top 1000 authors account for 9.1% of the entries (70,452). In other words, 1/3 of 1% of the authors produced 9.1% of the entries. After disambiguation, this disparity is likely to be slightly larger. Let's save the "quantity versus quality" debate until later; beyond citation counts, good luck operationalizing a measure of quality. Moreover, it is impossible to cite what was never written.

In addition to building the database, we are documenting, through a careful sampling process, the scope and coverage of the ILP database vis-a-vis a typical or exceptional author's total career productivity. That process has also yielded some interesting insights.

We hope to have one or two summary papers done by the fall, which will offer much more refined analyses, including trends over time. Stay tuned.

23 June 2007

Prospective law students and advocates of alternative rankings have just gotten a major break. The ABA Section on Legal Education and Admission to the Bar has posted all of its 2008 "Official Guide" data on its statistics website in downloadable Excel spreadsheet format.

Kudos to the ABA for its willingness to be transparent and facilitate informed student choice. Also, Ted Seto (Loyola, LA) and Tom Bell (Chapman) deserve credit for their public and persistent urging of the ABA to take this step. (See here, here and here.)

22 June 2007

I've been mulling over David Stras's recent post about whether methodology drives the research question or vice versa. I think that this question points to one of the things that is particularly exciting about the current wave of interest in ELS. Communication, joint research projects, and other kinds of cross-fertilization is increasing between legal academics (trained as lawyers) and social scientists who study the legal system. These interdisciplinary discussions -- formal and informal -- carry with them the possibility of taking the best insights and tools from different disciplines to help us all understand the legal system better.

This enterprise is not always easy, of course. In part this is because, as David points out, the scholar who, like him (and me), is not a methodologist but is interested in using the method most appropriate to the current research question must invest time and energy into learning and applying relatively unfamiliar approaches. It is also difficult because, as he suggests, at least for junior scholars, there may be risks associated with a more eclectic style of scholarship: for example, risks of not having an easily summarized area of expertise, or risks of not having an easily evaluated body of scholarship.

I think that there is a third area of difficulty -- or of opportunity, depending on how one looks at it. For years, political scientists and legal academics have failed to speak to each other across "the Great Divide."as Gerald Rosenberg called it in a 2000 article in The Green Bag. Engaging in that conversation now requires a willingness to challenge sacred cows (on both sides of the divide) and a thick skin to endure the responses to such challenges. This can be daunting for well-established scholars; all the more so for junior academics.

One example of this dynamic can be found in 69 University of Chicago Law Review, winter 2002. The Law Review sponsored an "Exchange: Empirical Research and the Goals of Legal Scholarship." The opening piece, "The Rules of Inference," by Lee Epstein and Gary King, included criticisms of works by legal scholars, some of whom responded aggressively. (Epstein and King, in their reply, at 60 U Chi. L. Rev. 191, deplored and discussed the "fireworks" in those responses.)

But as I said, this is also an area of opportunity. Simply talking across the Great Divide is not enough. I think that ELS provides an opening for scholars in a variety of related fields to help each other understand the strengths and weaknesses of their own approaches and received wisdom.

20 June 2007

If I had to write an essay on my summer vacation, this year's topic would be "Building a Relational Database." As I noted a few months ago, the LSAC funded our proposal for a large-scale longitudinal analysis on the production and content of legal scholarship (my co-PI's include Funmi Arewa, Ken Dau-Schmidt, Peter Hook, and Andy Morriss). The most difficult task in this endeavor is cost-effectively digitizing biographic information on every law professor who ever appeared in an AALS directory (from 1922 to 2007) and linking these individuals to the detailed bibliographic records contained in the Index of Legal Periodicals from 1928 to the present.

How does someone tackle a job this big? My legal training has negligible value here. It it really all about planning and collaboration among a team with a wide array of skill sets. With the input of a talented database expert, Mark Newton, and our co-PI, Peter Hook, who is a law librarian with graduate training in information sciences, we are developing and implementing a process that--we theorize--will (a) maximize the capture of information and complex relationships, and (b) minimize key strokes and errors.

So far, one of our greatest assets is the excellent workforce here in Bloomington. We currently have a research team that includes four graduate students from the School of Library and Information Sciences (SLIS), two excellent college graduates who are headed to law school in the fall, and a brilliant University of Chicago undergraduate with an eagle eye for detail. These talented folks are closest to the data and provide enormous insights that affect our planning process.

Although the relational database itself will not produce a scholarly paper, I am really grateful for the opportunity learn a lot of new technical and managerial skills. I am also developing a deeper respect for expert knowledge and team work.

Jake Gersen (Chicago) has written Markets and Discrimination, forthcoming in the NYU Law Review. I read this paper in draft form and have seen it presented as well... I highly recommend it. The Abstract:

Despite decades of scholarship in law and economics, disagreement persists over the extent of employment discrimination in the United States, the correct explanation for such discrimination, and the normative implications of the evidence for law and policy. In part, this is because employment discrimination is an enormously complex phenomenon, and both its history and continued existence are closely linked to politics and ideology. However, some portion of this dispute can also be traced to the incomplete use of empirical evidence. Most economic theories of employment discrimination imply empirical relationships between discrimination and the market structure of particular industries and characteristics of their workforces.

Yet empirical work has most typically focused on either specific industries or the economy as a whole, and little systematic evidence about market structure and patterns of actual employment discrimination claims exists. This Article compiles and analyzes an original data set comprised of industry-specific measures of employment discrimination claims, market conditions, and labor force characteristics. In so doing, this Article contributes to an emerging literature that tests the core theoretical positions in the law and economics of discrimination literature, which in turn promises to advance understanding of both the causes of and remedies for employment discrimination.

Lee Epstein has an interesting new post at Balkinization, see here, discussing whether Supreme Court Justices more often affirm cases that come from the circuit to which they previously served (i.e., home court) before their elevation to the Supreme Court. Based on her post, it sounds like this could be another interesting paper from Professor Epstein.

19 June 2007

Noting that "study after study confirms a strong correlation between judges' political preferences and their behavior in civil rights/liberties-type cases, but researchers have only rarely identified an association between politics and decisions in economics cases," a recently circulated paper by Nancy Staudt (Northwestern), Lee Epstein (Northwestern), and Peter Wiedenbeck (Wash U) asks the interesting question: "Why do judges appear to stand above politics in the areas of the law that are rife with conflict and controversy in the other two branches of government?" From the abstract:

"Lawmaking in the context of taxation,
bankruptcy, securities, antitrust, corporate law, to name just a few
examples, is highly political in both the legislative and executive
branches, as many empirical scholars have documented. For this reason,
we seriously question the claim that judges are unique in that they
have no political or ideological preferences when it comes to business
and finance. Our conjecture is that the null findings in the literature
are due to the technical difficulties associated with uncovering
politics in large-N studies addressing economics decision-making rather
than to a lack of judicial interest in these issues. But this is
precisely the question we investigate here."

Although the authors characterize their findings, drawn from U.S. Supreme Court tax cases decided between 1940-2005, as "preliminary," they conclude that their findings support rejecting "the null hypothesis that politics plays no role in judicial decision making that involves business and finance."

18 June 2007

As I was pondering possible future writing projects over the past few days, I began thinking about the different ways to approach interdisciplinary scholarship. A greater number of scholars in recent years seem to let methodology drive the research question. For instance, a researcher might use a particular type of game theory to explain behavior in a broad swath of substantive legal areas. That scholar might become an expert at game theory, but may have no special expertise in any particular subject matter such as torts or criminal law. An advantage of such an approach is that the scholar becomes very familiar with a particular set of methodological tools that may permit a fresh look in a variety of substantive legal areas. On the other hand, a disadvantage of such an approach may be that, without special expertise in the subject matter of the project, a scholar may have more difficulty putting his or her findings in context or may not be familiar with the exceptional attributes of the subject matter being studied.

My preferred approach to scholarship is to allow the research question to drive the methodology. Rather than repeatedly employing a particular methodology in a wide variety of subject areas, I look for questions that I personally find fascinating and to which I do not know the answer. Although most of my work is empirical, such an approach requires me to venture outside of my comfort zone for some of my writing projects, including the legal history project that I discussed over the weekend with respect to the life and jurisprudence of Pierce Butler. One advantage to this approach is that, unlike methodologically-driven research, I find that it is easier to gain a broad perspective and expertise about a particular legal subject matter or legal institution. For me, all of my research questions center around the federal judiciary and the Supreme Court, and I by no means consider myself a methodologist. An obvious disadvantage is that scholarship driven by a research question often requires scholars to use methodological tools that they have not employed previously. It therefore often takes greater time, patience, and care to allow the research question to drive the methodology. (The exception, of course, would be strictly doctrinal scholarship, in which the research question still drives the project but there is no need to learn or employ new methodological tools because law school, practice, and/or a clerkship provide ample training for such scholarship.)

I do not think that one approach is better than the other, and it may be that most scholars employ a hybrid of the two approaches when approaching their scholarly pursuits. I wonder which of the two approaches is more risky though, especially for untenured professors? Which approach is more common in the legal scholarly community? Are there other approaches that I am simply omitting from the discussion? Although this post is admittedly abstract, I think it is worth addressing some of these questions as these are the types of issues that new law professors who want to do interdisciplinary work face as they enter the legal academy.